Dayton Pump and Manufacturing Co.

In the Matter of DAYTON PUMP AND MANUFACTURING COMPANY cind UNITED ELECTRICAL , RADIO & MACHINE WORKERS OF AMERICA, C. I. O. Case No. R-5795. -Decided August 21,1943 Mr. C. C. Heller and MLr. Clarence J. Storeklein, of Dayton, Ohio, for the Company. Mr. Forrest Payne, of Dayton, Ohio, for the Union. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by United Electrical, Radio & Machine Workers of America, C.I.O., herein called the Union, alleging that a question affecting commerce had arisen concerning the representation of employees of Dayton Pump and Manufacturing Company, Dayton, Ohio, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Charles E. Persons, Trial Examiner. Said hearing was held at Dayton, Ohio, on August 4, 1943. The Company and the Union appeared at and par- ticipated in the hearing.' All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Dayton Pump and Manufacturing Company is an Ohio corporation with its principal place of business at Dayton, Ohio, where it is engaged in the manufacture and sale of watering pumps and systems, water softeners, and gasoline pumps. A substantial portion of the raw ma- "Although Lodge No. 225 , International Association of Machinists , herein called the I. A. M., was served with notice of hearing, it did not appear. 52 N. L. R. B., No. 9. 45 46 DECTSdONS OF N'A'TIONAL LABOR RELATIONS BOARD terials used by the Company is shipped to it from points outside the State of Ohio. During 1942 the Company sold products valued in ex- cess of $1,000, over 50 percent of which was shipped to points outside the State of Ohio. The Company admits, for the purpose of this pro- ceeding, that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III . THE QUESTION CONCERNING REPRESENTATION During June 1943 the Union, claiming to represent a majority of the Company's employees, requested recognition as the exclusive col- lective bargaining representative of the Company's employees. The Company refused this request. On June 23, 1939, the Company and the I.A.M. entered into an exclusive bargaining contract covering certain employees of the Com- pany involved herein. The contract provides that it shall remain in full force and effect from June 23, 1939, until 30 days' notice is given by either party thereto of a desire to terminate. The record indicates that, although no such notice has been given, the contract is not being enforced, and further, as noted above, the I.A.M., although served with notice of hearing, did not appear. Inasmuch as the contract is terminable on 30 days' notice by either party thereto, we find that it does not constitute a bar to a determination of representatives at this time. A statement of a Field Examiner of the Board, introduced into evi- dence at the hearing, indicates that the Union represents a substantial number of employees in the unit hereinafter found to be appropriate.2 We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT We find, in substantial agreement with a stipulation of the parties, that all production and maintenance employees of the Company, ex- cluding foremen, assistant foremen, any other supervisory employees with authority to hire, discharge, promote, discipline, or otherwise 2 The Field Examiner reported that the Union presented 128 membership application cards bearing apparently genuine signatures of persons whose names appear on the Com- pany's pay roll of May 22, 1943. There are approximately 285 employees in the appro- priate unit. DAYTON PUMP AND MANUFACTURING COMPANY 47 effect changes in the status of employees, or effectively recommend such action, office clerical employees, and plant-protection employees, constitute a unit appropriate for the purposes of collective bargain- ing, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by means of an election by secret ballot. The Union requests that the pay roll as of the date of its petition be used to determine eligibility to vote. The Company requests that a current pay roll be used for that purpose. Inasmuch as no reason appears as to why we should depart from our usual practice, we shall direct that those eligible to vote shall be the employees in the appropriate unit who were employed during the pay-roll period im- mediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 9, of National Labor Re- lations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representw- tives' for the purposes of collective bargaining with Dayton Pump and Manufacturing Company, Dayton, Ohio, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Ninth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately, preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding any who have since quit or been discharged for cause, to determine whether or not they desire to be represented by United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations; for the pair-poses of collective bargaining. CHAIRMAN MILLIS took no part in the consideration of the above Decision and Direction of Election.